EVID Flashcards

Question

PAYMENT OF WNs

Answer 1

1. prohibited - in excess of rxnble expenses and rxnble value, except may be noncontingent fee - contigent on the content of the testimony or the outcome of the litigation, or - otherwise permitted by law 2. permitted for appearance fee and travel allowance

Answer 2

- any Party may attack WN credibility, even own - Bolstering credibility is prohibited until after WN is challenged - Rehabiliation on redirect after truthfulness was attacked w Prior Consistent Statement - 7 methods by Extrinsic Evid / cross (Confrontation) 1. Prior Inconsistent Statement 2. Prior Conviction 3. Prior Bad Acts 4. Bias / Motive / Partiality / Corruption 5. (Un)Truthfulness 6. Sensory Deficiencies 7. Contradiction - Extrinsic Evid is any evid other than WN own testimony - Collateral Matter is not not directly related to the case

Answer 3

- if under oath, can be used substantively too - EE if relevant w proper Foundation - Confrontration permitted

Answer 4

1. not Arrest, but a. Crimes involving Dishonesty - any crime (Fraud, Larceny by Trick, Embezzlement, Perjury) & Judge cannot exclude b. Felonies (punishable by death or > 1 year imprisonment) - Judge has discretion to exclude - DWN if PV outweighs the prejudice to D (stricter than 403) - Standard WN generally admissable, discretion is 403 Exclusion 2. Stale after 10 years from the later of Conviction / Release, unless Reverse 403 & Mtn in Limine for notice of itnent to use EE by certification or record w/o Foundation Contradiction permitted ## Footnote Pardon / Annulment w tfinding of innocence or Juvenille adjudication is inadmissible

Answer 5

- probative on truthfulness, regardless of how long ago - EE never - only Contradiction in GF, but not ask about the consequence of the bad act

Answer 6

- if WN bias or financial / personal interest in the outcome - EE permitted - Confrontation required (Foundation) - Religious opinions & beliefs cannot be used to impeach, but can show Bias / Interest

Answer 7

- by calling a second WN - EE RO community mouth - Confrontation permitted, SA at cross

Answer 8

- impaired perception and recollection based on perceptive disabilities (ie. vision, hearing), lack of memory, or mental disorders to accurately relate testimony - EE permitted - Confrontation permitted

Answer 9

- direct conflict w a fact already testitifed to - EE if not Collateral - Confrontration required

Answer 10

1. Authentication & Self Authentication 2. Best Evidence Rule 3. Parol Evidence Rule

Answer 11

all tangible evid must be authenticated to support a finding that the thing is what its proponent claims it is 1. physical objects - by personal knowledge, distinctive characteristics, or chain of custody - reproductions (photos, diagrams, mpays) by testimony WN w personal knowledge that object accurately depicts what its proponent claims it does - Xrays, EKGs process used was accurate, machine works, and operator qualified 2. documentary evid (can be self authenticating but needs BER for contents) - by stipulation, EWN testimony, or handwriting verification - ancient docs (at least 20 yo) in condition unlikely to create suspicion and found in a likely place of natural custody - public records recorded / filed in public office - reply letter in response to communication - handwriting verification by Expert WN comparison or non-expert w personal knowledge - self authenticating doesn't need Extrinsic Evid (ex. govt authorized docs,, certified pub recs, or newspapers) 3. oral statements - Voice ID by any person who has heard voice at any time - telephone statements by party to the conversation if recognized the speaker's voice, knew facts that only a particular person would know, caller dialed number believed to be speaker, and speaker idetified self upon answering / caller dialed a business and spoke about business regularly conducted over the phone

Answer 12

docs doesn't need Extrinsic Evid 1. Certified public / business record (ex. Drivers Lic) 2. Official publication 3. Newspapers 4. Trade inscriptions / labels 5. Acknowledged docs 6. Signature on commercial docs 7. Evid w distinctive characteristics (ex. serial #s, police initials)

Answer 13

original doc or reliable duplicate must be produced to prove contents of writing when 1. contents are at issue, or 2. WN is relying on contents when testifying - dup reliable if there is no genuine question as to the authenticity of the original, and not unfair (handwritten copies of ori are not dups) - ori is not required when oris are lost / destroyed in GF, party w ori did not produce, or doc not closely related to controlling issue - contents of pub rec are generally proved by a certified copy - voluminous docs is summarized if contents cannot be conveniently examined in ct, proponent must make oris/dups available for examination and copying by other parties at a rxnble time and place, Ct may order oris/dups be produced in ct - if admission by Party w ori | inapplicalbe to Collateral docs

Answer 14

operates to exclude evid of prior or contemporaneous negotiations that, if introduced, would change the terms of a written agreement 1. complete intergration contains all terms agreed by the Parties = PER is in effect and no Extrinsic Exivd is admissable 2. partial intergration contains some but all agreed upon terms - EE that adds is admissible - EE that contradicts is inadmissible 3. Exceptions - EE to clarify ambiguity, prove Course of Dealings, show fraud / duress / mistake, or show presense / absence of Consideration | excludes negos EE after K executed

Answer 15

to protect confidential communications - destroyed if overheard, unless a. no knowledge of TP presence, or b. TP is necessary to assist communication (ex. translator) - waived if Holder a. fails to timely assert, b. voluntarily discloses comm, or c. contractually waives in advance 1. Spousal Immunity 2. Marital Communications 3. Atty-Client ACP 4. Psychotherapist-Patient 5. Clergy-Petinent 6. non-recognized privileges | governed by Fed CL is in fed ct

Answer 16

- protects everything (comms and observations) from before & during Marriage - Holder is spouse, ends at divorce - Crim case only

Answer 17

1. protects comms only during Marriage 2. Holders are both D and spouse, unless - legal actions between spouses - crimes against the testifying spouse / children - in furtherance of a joint crime / fraud - comms not intended to be confidential 3. continues beyond divorce 4. in both Civ and Crim cases

Answer 18

- protects comm for legal advice (consultation) - Holder is client, survives even after death - Waiver, incl TP disclosure unless inadvertent - Exceptions 4 1. to enable or aid crime / fraud (client knows of should have known) 2. defense in legal malpractice suit 3. dipute bw multi parties re same deceased client 4. joint clients who became adverse - Work Product is protected though not comm, unless a. substantial need, and b. cannot obtain the information by any other means w/o undue hardship

Answer 19

- protects comm for treatment / diagnosis - Holder is patient - Exceptions 4 1. state ordered exam 2. commitment (mental hospitalization) proceeding 3. patient mental condition is at issue 4. dangerous patient (Duty to Warn)

Answer 20

- protects confessions - Holder is petinent

Answer 21

1. physician-patient - most States protect also for medical treatment / diagnosis hold by patient w same Exceptions as Psychotherapist-Patient 2. Accountant-Client 3. professional journalist - no protection re source 4. Govt Privilege 2 - from disclosing informant's ID in Crim case if informant doesn't volunteer ID - comm of official info by or to public officials | connects to SI

Answer 22

1. voluntary disclosure 2. K provision 3. failure to invoke 4. failure to object when priviliged testimony is offered

Answer 23

out of court statement offered to prove the Truth of the Matter Asserted TOMA 1. Declarant must be a person - data readouts from machines w/o human input is nonHearsay - animal conduct / barks are nonHearsay 2. Statement can be verbal, written, or assertive nonverbal conduct ## Footnote Hearsay within Hearsay requires analysis for each Hearsay to be admissable as a whole

Answer 24

1. Prior Statements 3 - Prior Inconsistent Statement 2 a. to impeach b. as substantive proof if under oath & subjected to cross - Prior Consistent Statement to rehabilitate - Prior Statement of ID is substantive evid even if WN has no memory of prior ID 2. Statement by Party Opponent (Admissions) admissible w/o personal knowledge (can be O), need not against that Party's interest - Judicial Admission - made in pleading, Disc, or proceeding is conclusive evid, except w/drawn guilty plea - Adoptive Admission - TP statement expressly / impliedly adopted by Party, incl silence in response if a. Party was present, heard, and understood the statement b. Party had the ability and opportunity to deny the statement, and c. rnxble person similarly situated would ahve denied the statement - Vicarious Statements - imputed statements based on the relationship bw the persons (EE/agent, authorized speaker, coConspirators) 3. Legally Operative Words (Verbal Acts) - words w legally significant meaning (ex. acceptance, conspiracy, permission, waiver) 4. Effect on Listener - to establish notice, G/BF, rxnbleness, reason for action / inaction the listener 5. Impeachment | LEI don't fit Hearsay definition

Answer 25

declarant available 1. Present Sense Impressions - spoken thoughts 2. Excited Utterances - ! 3. State of Mind - present and future motive / intent / plan 4. Statements for Medical Diagnosis 5. Recorded Recollection - unrefreshable memory 6. Business Records 7. Absense of Records 8. Public Records ## Footnote incl statements from Learned Treatises, periodicals, or phamplets by Expert WN 803.18

Answer 26

explaining or describing event / condition made while (contemporaneous) or immediately after declarant perceived it

Answer 27

startling event/condition while declarant is under stress (slight delay is OK)

Answer 28

then-existing (present & future motive / intent / plan) state of mind or emotional / sensory / physical condition ## Footnote cannot be restospective (based on memory / belief), except for Wills

Answer 29

describing medical history or present symptoms for medical treatment / diagnosis - exclude statements of fault ## Footnote can be made to anyone (ex. family members) need not be made by the patient

Answer 30

the record 1. from WN personal knowledge 2. made, recorded, or adopted by WN 3. made when matter was fresh 4. accurately reflects WN memory 5. WN cannot recall even after refreshed on stand

Answer 31

rec 1. must be kept in course of regularly conducted business activity 2. making of record is regular business practice 3. made at or near the time 4. by custodian ## Footnote Ct has discretion to exclude if preparation shows lack of trustworthiness

Answer 32

to prove the nonoccurence of an event bc otherwise would be in biz recs

Answer 33

1. sets out activities of public office (incl nonprofit), or 2. findings of a legal investigation 3. in the scope of public officer / agent employment (duty to report) 4. made at or neat the time ## Footnote exclude police & FBI reports

Answer 34

catch all if 1. supported by sufficient guarantees of trustworthiness, and 2. more probative than any other evid that proponent can obtain through rxnble efforts

Answer 35

declarant unavailable from testifying at or attending the trial bc privilege, memory, refusal, death / incapacity, absence + rxnble efforts 1. Former Testimony w same opportunity & motive in direct, cross, & redirect a. in Civ against Predecessor in Interest b. in Crim against same Party 2. Statement Under the Belief of Imminent Death (Dying Declaration) 3. Statement Against Interest 4. Statement of Personal or Family History 5. Statement against party that caused declarant's unavailability (WN Tampering) ## Footnote necessity exceptions bc declarant unavailable, after foundation

Answer 36

w same opportunity & motive in cross (even depo) a. in Civ against Predecessor in Interest b. in Crim against same Party ## Footnote exclude Grand Jury and other events w/o cross

Answer 37

1. rxnble belief of imminent death about cause / circumstances of death, need not actually die 2. only in Homicide and Civ cases ## Footnote must not be mere suspicion (actual knowledge)

Answer 38

1. against personal, proprietary, pecuniary (money), or penal interest, and 2. rxnble person would not state unless true ## Footnote against penal interest in Crim case must be corroborated

Answer 39

about family pedigree (birth, adoption, marriage, divorce, death) if - family member, or - personal knowledge

Answer 40

Party wrongfully caused declarant unavailability | from 6A Confrontation Clause

Answer 41

1. restrictions - 6A Confrontration Clause - objective analysis of testimonial statements & WN tampering - 14A DP - not to unduly restict D ability to mount defense 2. face to face confrontation - can be denied if important public interest at stake

EVID Flashcards

(65 cards)